Comment No Need to Stand on Ceremony: The Corruptive Influence of Ceremonial Deism and the Need for a Separationist Reconfiguration of the Supreme Court's Establishment Clause Jurisprudence* I. INTRODUCTION Adherence to the imperatives of the Establishment Clause' contrib- utes significantly to the First Amendment's quintessential purpose of promoting the democratic ideal of a vigorous public discourse on all issues of public concern in the belief that in this way a cohesive political community can be forged from a culture of dissidence. Governmental abstention from endorsement of religion is essential to ensure that no one is ostracized from this political community by virtue of his religious * The Author wishes to gratefully acknowledge the helpful comments and critiques of Professors Ted Blumoff, Leighton Moore, and Jack Sammons on earlier drafts of this Comment. Any missteps or mistakes in the analysis this Comment offers are of course entirely my own. 1. U.S. CoNST. amend. I. "Congress shall make no law respecting an establishment of religion .... ." Id. 1669 1670 MERCER LAW REVIEW [Vol. 54 belief (or lack thereof), or more pointedly, that no one is forced to choose between inclusion in the polity and adherence to conscience. The Establishment Clause is emblematic of this harmonizing endeavor as it seeks to ensure both the autonomy of religion from governmental interference2 and that a person's religious beliefs (or lack thereof) will in no way affect his full inclusion within the political community.' In pursuing these dual ideals, the Establishment Clause (in conjunction with the Free Exercise Clause4) strives to reconcile the individual's desire for moral autonomy with the collective's desire for socio-political cohesiveness. Perceived in this light, the Establishment Clause possesses the potential to safeguard our pluralistic society by enshrining both freedom of conscience in religious matters as an inviolable constitutional right and religious tolerance as an indispensable constitutional imperative. Therefore, courts applying the Establishment Clause should endeavor to promote both religious tolerance and freedom of conscience by forbidding the government from endorsing any one religion or religion generally versus nonreligion' Currently, the Supreme Court's Establishment Clause jurisprudence is in a state of flux. To date, the Court has articulated no fewer than 2. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). Depicting the First Amendment as instituting the mutual autonomy of both church and state, the Court opined, "The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.'" Id. (quoting Watson v. Jones, 80 U.S. (13 Wal.) 679, 730 (1871)). 3. Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O'Connor, J., concurring). In now famous language, Justice O'Connor articulated what she styled a "clarification" of the Court's Establishment Clause jurisprudence: The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition [by]... endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Id. 4. U.S. CONST. amend. I. "Congress shall make no law respecting an establishment of religion, or prohibitingthe free exercise thereof" Id. (emphasis added). 5. See Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968). Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and ... non- religion. Id. (emphasis added). 2003] ESTABLISHMENT CLAUSE 1671 three separate and distinct tests6 for use in Establishment Clause challenges to governmental actions that allegedly "[bring] government and religion into that proximity which the Establishment Clause forbids."7 This Comment argues that the flux in the Court's Establish- ment Clause jurisprudence can be attributed to the Court's subtle departure from the "separationist" model' in favor of the "accomodation- 6. The three current Establishment Clause tests are: 1) the "Lemon test," Lemon v. Kurtzman, 403 U.S. 602 (1971); 2) the "endorsement test," Lynch, 465 U.S. 668; Allegheny County u. ACLU, 492 U.S. 573 (1989); and 3) the "coercion test," Lee v. Weisman, 505 U.S. 577 (1992). 7. Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 263 (1963) (Brennan, J., concurring). 8. The "separationist" model, generally speaking, advocates the mutual autonomy of the secular and religious realms of society. The precise origin of the separationist model is a matter of some dispute. While conventional wisdom generally assumes that the onset of the Protestant Reformation created the ideological impetus and political inertia for the modern surge towards the separation between church and state in western civilization, evidence exists that the emergence of the separationist principle actually originated in the ecclesiastical realm. Gerard V. Bradley, The EnduringRevolution: Law and Theology in the Secular State, 39 EMORY L.J. 217 (1990). Bradley attests that, The uniquely Western notion of two jurisdictions, including an autonomous temporal order of civil regulation, was produced entirely by Christian theological reflection. Eleventh-century ecclesiastical reformers, who inhabited an undifferen- tiated realm of sacralized kingship and worldly prelates, sought a more authentic Christianity by separating church from empire. Medieval history, frequently depicted as beset by theocratic regimes, was instead one long struggle by the church to free itself of royal domination. Id. (footnote omitted). In another common misconception, credit for the construction of the separationist model in the context of American society is usually attributed to Thomas Jefferson's famous metaphor that the First Amendment "erects a wall of separation between church and state." THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 307 (Adriene Koch & William Peden eds., 1998). This statement is not entirely accurate, however, as Jefferson was merely the earliest conspicuous American proponent of separation primarily for the benefit of secular society. (In truth, Jefferson's sentiments on this score were merely reflective of the earlier writings of John Locke in A LETTER ON TOLERATION, wherein Locke argued that religious toleration should be extended to all sects which do not threaten the peace of civil society.) Moreover, the original American agitator championing the institutional separation of sacred and secular was in fact Roger Williams, a seventeenth century Protestant dissident, who advocated for separatism as a measure to preserve the religious realm from temporal pollution because "worldly, corruptions ... might consume the churches if sturdy fences against the wilderness [are] not maintained." See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1158-60 (2d ed. 1988). Nonetheless, strictly historically speaking, it is evident that the accomodationist model, not the separationist model, was the prevailing paradigm in seventeenth and eighteenth century American culture: A great many early American settlements were formed by dissident religious minorities fleeing from the Protestant establishments of England, Ireland, and 1672 MERCER LAW REVIEW [Vol. 54 ist" model.9 In the Author's view, a reconfiguration of the Supreme Court's Establishment Clause jurisprudence into one unified, comprehen- sive, and consistent approach is highly desirable. A reconfiguration of the Court's analytical framework in the mold of the separationist model is essential to bolster our pluralistic society by effectuating the dual imperatives of individual autonomy and social cohesion manifested in the Establishment Clause. Part II discusses the historical evolution of the Supreme Court's Establishment Clause jurisprudence, including the corruption of the Court's "Lemon test" by the Court's "secularization"10 analysis, the Scotland. Paradoxically, many Europeans who fled to the New World to escape established religion agreed that Church and State should be combined in their new settlements. With few exceptions, those who fled religious persecution were no more tolerant of religious dissenters than [ those from whom they had fled. ROBERT L. CORD, SEPARATION OF CHURCH AND STATE: 1IISTORICAL FACT AND CURRENT FICTION 3 (1982). See also Stephen B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLuM. L. REV. 2083, 2099-2100 (1996) (describing the synergy between political and religious life in revolutionary and postrevolutionary America and noting the existence of established state-sponsored churches in ten of the original thirteen colonies). 9. Generally speaking, the "accomodationist" model refers to an interpretation of the Establishment Clause that holds that the government may offer aid and official acknowledgment to religion so long as it does not prefer one religion over another. This view posits that the